Solomon v. 404 N. Maple Dr. CA2/7 ( 2022 )


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  • Filed 2/16/22 Solomon v. 404 N. Maple Dr. CA2/7
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SEVEN
    TATIANA SOLOMON,                                        B297996
    Plaintiff and Appellant,                           (Los Angeles County
    Super. Ct. No. BC684588)
    v.
    404 N. MAPLE DR., LLC et al.,
    Defendants and Respondents.
    APPEAL from judgment of the Superior Court of
    Los Angeles County, Ruth Ann Kwan, Judge. Affirmed in part,
    reversed in part.
    Tatiana Solomon, in pro. per., for Appellant.
    Collins & Collins LLP, Edward J. Rifle, Christian E. Nagy
    and Bradley D. Doucette for Respondents.
    __________________________
    INTRODUCTION
    1
    Tatiana Solomon and her husband, Norman Solomon, sued
    their landlords and apartment managers, 404 N. Maple Dr., LLC,
    Standard Management Company and Samuel Freshman
    (collectively landlord defendants or defendants), for alleged
    defects in the Solomons’ apartment, including the presence of
    mold and asbestos. On August 29, 2018 Norman Solomon
    dismissed his claims and the case proceeded with Tatiana
    2
    Solomon as the remaining plaintiff.
    Solomon appeals the judgment entered against her
    following the trial court’s order granting landlord defendants’
    motion for summary judgment or in the alternative summary
    adjudication as to each of the causes of action in Solomon’s
    second amended complaint and her claim for punitive damages.
    We affirm the court’s order granting summary adjudication
    regarding Solomon’s claims for fraud, breach of contract,
    intentional infliction of emotional distress, violation of Business
    and Professions Code section 17200 and her demand for punitive
    damages. We reverse the judgment and reverse the court’s order
    granting summary adjudication for Solomon’s claims for
    negligence, breach of the implied warranty of habitability, breach
    of the covenant of quiet enjoyment, nuisance, and constructive
    eviction because landlord defendants failed to demonstrate there
    was no material issue of disputed fact as to those five causes of
    action.
    1
    Tatiana Solomon also goes by the name Tatiana Vozniouk.
    2
    All further references to Solomon denote Ms. Solomon only.
    2
    FACTUAL AND PROCEDURAL BACKGROUND
    1. The Solomons Rent an Apartment from Landlord
    Defendants from 2008 to 2017
    In 2008 the Solomons signed a rental agreement to lease
    apartment unit 302, North Maple Drive, in Beverly Hills (the
    3
    unit or unit 302). The Solomons acknowledged in their rental
    agreement they had “examined the premises”; that the premises,
    including “all furnishings, fixtures, furniture, plumbing, heating,
    [and] electrical facilities” were “all clean, and in good satisfactory
    condition”; and that the Solomons were not aware of “damp or
    wet building materials . . . [or] mold contamination.” The
    Solomons agreed to “keep the premises and all items in good
    order and condition” and “maintain the premises in a manner
    that prevents the occurrence of an infestation of mold in the
    premises.” In November 2009 and again in November 2013 the
    Solomons renewed their lease. The two subsequent rental
    agreements contained the identical acknowledgements contained
    in the original 2008 lease.
    On September 23, 2014 in response to a complaint by the
    Solomons that there was mold in their apartment, the Los
    Angeles County Department of Public Health (DPH) conducted
    4
    an inspection of unit 302 and found a violation. The inspection
    3
    The facts are taken from the parties’ declarations and
    exhibits the trial court considered during its evaluation of
    defendants’ motion for summary judgment or summary
    adjudication. The facts are undisputed unless otherwise noted.
    4
    Approximately one week later, on October 3, 2014, DPH
    conducted another inspection of the property. The record is
    unclear as to who requested this inspection and which units were
    3
    report noted a “microbial growth on the tile and grout in
    shower/bathtub” and that the areas should be cleaned and
    sanitized.
    In response to the DPH report, defendants’ maintenance
    person removed the shower doors and track from the Solomons’
    guest bathroom and cleaned and sanitized the area. On October
    9, 2014 the Solomons sent a follow-up email to the property
    manager, Jane Hope, complaining the odor from the cleaning
    chemicals used by the maintenance person in the bathroom made
    the bathroom unusable. In that email the Solomons also made
    additional complaints, including that the dishwasher, washing
    machine, lights and light switches were not working properly; the
    guest bathroom toilet had rusted; there were holes in window
    screens; and there was still “bacteria-mold” in their unit. The
    Solomons stated “we didn’t complained [sic] for all those years
    since all those problems started, but now we really would like to
    ask to fix it and to lower our rent. Just in several years from 31
    hundred it’s been raised to almost $4000. The apartment is not
    in a good condition, you witnessed it this morning.”
    In November 2014 a leak in the building roof caused a leak
    and water damage in the Solomons’ master bedroom ceiling.
    Landlord defendants repaired the building roof in March 2015,
    but it is unclear what repairs, if any, defendants conducted in the
    Solomons’ apartment prior to 2017.
    inspected. The inspector identified two violations, one for
    suspected mold and another for “evidence of sewage flow in units
    . . . and in garage.” The inspector noted plumbers were onsite at
    the time of the inspection, the sewage blockage was partially
    cleared, and “[c]lean-up [was] started in affected units and
    garage.”
    4
    Between November 2014 and December 2016 the Solomons
    made many complaints to landlord defendants, primarily
    regarding their unit but also as to common areas of the
    apartment complex. These complaints included: repeated issues
    of mold growth in the guest bathroom; items stolen from unit 302
    and from cars in the garage; locks in their unit needed to be
    changed; washing machine, refrigerator, dishwasher, breaker
    panel, balcony door, outlets, flooring, guest bathroom toilet,
    carbon dioxide detector and lobby lights needed to be repaired or
    replaced; landlord towed cars in garage without warning; and
    garbage was left in the garage for 10 days.
    On February 22, 2017 there was another leak in the master
    bedroom ceiling of the Solomons’ apartment. The next day
    defendants retained Executive Environmental to take material
    and air samples in the unit. Executive Environmental reported
    “No Asbestos-Containing Material” was identified during the
    inspection. The report noted the inspection was “limited to
    materials and locations affected by the recent water leak and
    anticipated to be impacted by the remediation/repair activity of
    the master bedroom in Unit 302, as directed by the client.” On
    February 27, 2017 Hope sent the Solomons an email, attached
    the inspection report and stated unit 302 was “safe.”
    Around the same time, a neighbor informed Solomon of
    asbestos in unit 303, which was adjacent to Solomon’s unit. On
    March 1, 2017 Solomon emailed Hope about this issue. Hope
    responded via email the same day stating, “There is no asbestos
    in your unit. That is all you need to know.” Hope continued, “I
    am not at liberty to discuss anything that does not directly
    impact your apartment.” Later that day, in response to further
    emails from Solomon, Hope wrote, “I neither confirmed nor
    5
    denied the existence of asbestos in 303; I merely provided a
    report stating that there was NO asbestos in YOUR apartment.”
    Hope elaborated, “Apartment 303 has been properly cleared of a
    trace amount of asbestos . . . . The only reason it had to be
    removed was that ceiling repairs needed to take place.” During
    this time landlord defendants provided the Solomons with a
    “Confidential Concession & Release of All Claims” regarding
    “Damp ceiling due to inclement weather conditions.” The
    Solomons did not sign the release.
    On March 8, 2017 DPH conducted an investigation
    “regarding hole in ceiling and mold in unit #302.” The inspector
    found a violation for an unrepaired hole in the ceiling of the
    master bedroom and noted suspected mold on bathroom tiles in
    the bathroom. The report stated the inspector spoke with the
    property manager during the site visit, and the manager
    provided the inspector with a “mold testing report for unit #302
    with negative results. The manager on site stated that the
    tenant was provided with mold testing report.”
    The following week the Solomons retained additional
    contractors to inspect their unit. Lead Tech Environmental
    (Lead Tech) conducted an inspection and issued a “Limited
    Asbestos Sampling Report” on March 16, 2017. The report noted
    trace amounts of asbestos in the ceiling drywall in the Solomons’
    master bedroom.
    The same day Hope emailed Solomon. Apparently relying
    on the February 23, 2017 Executive Environmental report, Hope
    asserted, “The city does not require a permit when there is no
    asbestos. The asbestos report on your unit has been provided to
    the city.” Hope also stated, “Only one bedroom is affected by the
    repairs so the rest of your unit is fully habitable.”
    6
    On March 23, 2017 Nv Environmental conducted an
    inspection as requested by the Solomons. Nv Environmental
    collected samples to determine whether the Solomons’ apartment
    had elevated moisture, water damage or mold. Nv
    Environmental’ s written report noted several areas of concern in
    unit 302, including water damage and mold in the middle section
    of the master bedroom ceiling, surface mold on the shower tile in
    the guest bathroom and water damage under the kitchen sink.
    Nv Environmental determined a professional mold remediation
    company would need to remove a six-foot by four-foot section of
    the master bedroom ceiling to determine the scope of damage and
    necessary remediation. On March 29, 2017 a building inspector
    for the City of Beverly Hills emailed Solomon and said: “I spoke
    to the manager about the mold report you sent me, she will
    obtain the required permits for the remediation.”
    On April 6, 2017 landlord defendants sent the Solomons a
    letter stating that on March 24, 2017 they timely informed the
    Solomons that work on the master bedroom ceiling would begin
    on April 3, 2017 and the Solomons would need to vacate the
    apartment. According to the letter, the Solomons did not vacate
    their unit and refused to allow the contractors to enter.
    Construction on the Solomons’ master bedroom ceiling began on
    approximately May 30, 2017. On June 2, 2017 defendants sent
    the Solomons a letter stating that, until the work was
    finished and the City completed its inspection, to “maintain the
    integrity of the containment area in the Premises (“Containment
    Area”) . . . neither you nor any of your agents are authorized to
    enter the Containment Area.” For approximately five of the
    following nights Solomon slept in her car in the apartment
    complex garage because she could not afford to stay in a hotel.
    7
    On June 8, 2017 defendants sent the Solomons a follow-up letter
    reporting that the repairs were complete, and “the unit is ready
    for you to return for occupancy.” Landlord defendants informed
    the Solomons that because they were displaced for nine days, a
    credit of $1,320.03 would be applied to their July rent.
    Wary of landlord defendants’ assurances regarding the
    habitability of their unit, the Solomons retained Indoor
    Restore Environmental Services (Indoor Restore) to conduct
    further inspections for mold. Indoor Restore issued a report on
    June 13, 2017. The report found “fungal contaminates” on
    surface samples but no elevated levels of moisture. The report
    noted “[s]lightly elevated levels of fungal spores were found in
    [air] samples taken at the time of the inspection. Elevated levels
    of mold indicate a high likelihood of mold growth in the area
    tested at the time of the inspection.”
    On July 7, 2017 Executive Environmental sent a letter to
    landlord defendants summarizing its findings regarding mold
    levels in unit 302 as of June 12, 2017. Executive Environmental
    made numerous conclusions regarding the data, including: “No
    water damage species were identified in air samples in quantities
    that would suggest a hidden growth of mold or a potential health
    concern”; “indoor spore levels were significantly to well below the
    total levels measured outdoors”; “[t]he one species found to be
    higher [indoors] than the levels measured outdoors was
    Ascospores Species, which does not cause disease . . . [and is]
    indicative of a housekeeping issue”; and unit 302 “is safe to
    occupy from a mold exposure standpoint and does not pose a
    health hazard for the typical occupants.”
    On August 9, 2017 Executive Environmental issued an
    “Asbestos Work Monitoring Report” that summarized its
    8
    asbestos-related activities in unit 302 between May 30 and June
    1, 2017. Executive Environmental reported that it “successfully
    completed the removal of 30 square feet of asbestos containing
    drywall ceiling material from the Southeast section of the Master
    Bedroom in Unit 302 . . . .” Indoor Restore conducted another
    inspection on November 1, 2017 and issued a report the same
    day. The report again found “fungal contaminates” on surface
    samples, but no elevated levels of moisture and no elevated levels
    of fungal spores in air samples.
    On November 8, 2017, in response to a complaint regarding
    unit 302, DPH conducted another inspection of the premises.5
    The inspector identified three violations: an inoperable sink
    stopper in the guest bathroom; a large hole inside the cabinet
    under the kitchen sink; and “dark mold like substance around
    edge of bathtub, along the wall, inside main bathroom of Unit
    302.” Later that month the Solomons vacated their unit.
    2. The Solomons Sue Landlord Defendants
    On November 28, 2017 the Solomons filed this
    action against landlord defendants. The operative pleading is
    the second amended complaint, which the Solomons filed on
    June 18, 2018.
    Solomon asserted landlord defendants, through their
    actions and omissions in responding to the defects in her rental
    unit, caused her to suffer emotional and physical harm, including
    difficulty breathing, asthmatic attacks, coughing, nausea, nose
    5
    The record contains additional DPH reports issued between
    2014 and 2019 for other units in the building. Those reports are
    not directly relevant to the issues currently on appeal.
    9
    bleeds, migraines, skin lesions, exacerbation of her allergies and
    depression. Solomon sought various forms of relief for her claims,
    including compensatory and punitive damages.
    On August 30, 2018 the trial court granted Solomon’s
    attorney’s motion to be relieved as counsel. Since that time,
    including in this appeal, Solomon has represented herself.
    3. Landlord Defendants Move for Summary Judgment or,
    in the Alternative, for Summary Adjudication
    On December 4, 2018 landlord defendants filed a motion for
    summary judgment or, in the alternative, for summary
    adjudication of all nine of Solomon’s causes of action and for
    Solomon’s claim for punitive damages. In support of their motion
    defendants filed a memorandum of points and authorities,
    numerous declarations, a separate statement of undisputed facts
    and a “compendium of evidence” comprised of 19 exhibits.
    Defendants argued each of Solomon’s causes of action was
    unsupported by evidence and no triable issues of material fact
    existed as to any of Solomon’s claims. Relying on select medical
    records from Solomon’s treatment at the Venice Family Clinic,
    defendants also asserted that all of Solomon’s alleged myriad
    mental and physical ailments were documented preexisting
    conditions and were unrelated to her tenancy in unit 302.6
    In opposition to defendants’ motion, Solomon contended
    there were numerous triable issues of material fact, including
    6
    Defendants contend the Solomons are no longer married,
    and their divorce was a cause of Solomon’s claimed emotional
    distress. Solomon asserts that she and Norman are still married.
    Solomon’s marital status is irrelevant to the issues in this appeal.
    10
    how landlord defendants acknowledged or denied, and responded
    to or ignored, the mold and asbestos in her apartment. Solomon
    filed a declaration with 21 attached exhibits, including the
    March 16, 2017 Lead Tech asbestos report, the March 23, 2017
    Nv Environmental mold report and approximately 90 pages of
    medical records. The medical records document Solomon’s many
    medical visits from 2014 to 2017 to her family doctor, her
    psychologist and urgent care providers for various conditions,
    including skin lesions, dermatitis, allergies, mold exposure,
    headache, sore throat, cough, dizziness, nausea and vomiting,
    rash, depression, stress and anxiety. While Solomon suffered
    from some of these same health issues prior to moving into unit
    302, both Solomon’s primary care physician and her psychologist
    reported that her conditions were exacerbated by conditions at
    her building, including exposure to mold. Her psychologist said
    that Solomon’s mental health had suffered due to “deteriorating
    physical conditions inside her apartment and increasingly,
    neglectful, abusive and harassing treatment by the on-site
    manager and by the ownership of her apartment building.”
    Solomon also submitted declarations from friends who visited her
    during her tenancy. Many of them confirmed Solomon’s
    complaints regarding her apartment, including smelling a musty
    odor and dampness, observing mold and having their own allergic
    reactions when visiting her unit (e.g., sneezing, coughing and
    eyes tearing).
    Solomon also filed “Plaintiffs’ Separate Statement of
    Undisputed Material Facts in Support of Their Opposition to
    Defendants’ Motion for Summary Judgment or, in the
    Alternative, Motion for Summary Adjudication” (Solomon’s
    separate statement). Notwithstanding the title, it appears that
    11
    Solomon intended this filing to either serve as her objections to
    defendants’ separate statement of undisputed material facts, or
    her statement of disputed facts in opposition to defendants’
    motion for summary judgment. Although the substance of the
    filing suggests Solomon was objecting to defendants’ evidence,
    she only used the word “object” once, and otherwise stated
    “Disputed,” followed by an explanation why the evidence offered
    by the defendants was inaccurate; in each instance she
    referenced her declaration or specific exhibits as “supporting
    evidence” that there was a disputed factual issue.
    In their reply landlord defendants argued they met their
    initial burden to establish the absence of a triable issue of
    material fact for each of Solomon’s causes of action and the
    burden shifted to Solomon to demonstrate otherwise. Defendants
    claimed Solomon failed to meet her burden because she did not
    introduce admissible evidence to support her contentions.
    Landlord defendants objected to every paragraph of, and every
    exhibit referenced in, Solomon’s declaration,7 including
    statements and documents upon which they relied in support of
    8
    their motion. Defendants’ objections were primarily based on
    7
    Solomon’s declaration had 34 paragraphs. Landlord
    defendants made one objection for each paragraph, except
    paragraph 32, to which they made two objections. Landlord
    defendants also objected to Solomon’s concluding statement on
    page eight of her declaration.
    8
    For example, in paragraphs two through four of her
    declaration, Solomon asserted she entered into a lease with
    landlord defendants in 2008, 2009 and 2013. Defendants
    objected to each of those paragraphs, asserting that Solomon
    failed to lay a proper foundation to authenticate those three
    12
    Solomon lacking the “requisite knowledge” to properly
    authenticate or otherwise lay the proper foundation for her
    exhibits.
    4. The Trial Court Grants Landlord Defendants’ Motion for
    Summary Judgment
    On March 6, 2019 the court granted landlord defendants’
    motion for summary judgment or in the alternative summary
    adjudication on each cause of action in Solomon’s complaint. The
    court sustained all or a portion of 23 of defendants’ 36 evidentiary
    objections to Solomon’s evidence in opposition to the motion. The
    evidentiary rulings resulted in the court “disregarding” nearly all
    the evidence submitted by Solomon, including the March 16, 2017
    Lead Tech asbestos report and the March 23, 2017 Nv
    Environmental mold report. The court considered all evidence
    submitted by defendants, including the inspection reports and
    correspondence from Executive Environmental from February
    through August 2017.
    In a section titled “Summary of Defects and Damages” the
    court explained, “Although Defendants’ motion is organized by
    cause of action, Plaintiff’s opposition is organized by habitability
    defect. Because all of Plaintiff’s causes of action essentially arise
    from the same defects, the Court addresses the defects first,
    before turning to the causes of action.” The court discussed
    Solomon’s alleged defects in separate sections of the order titled:
    mold, asbestos, improper flooring, electrical problems and
    rental agreements―the same rental agreements that defendants
    relied on to support their claims that Solomon inspected unit 302
    and acknowledged that the unit was in good condition with no
    defects, including mold, prior to Solomon signing each of those
    leases.
    13
    termites. Regarding each of the alleged defects, the court
    considered the admitted exhibits and declarations provided by
    landlord defendants but did not consider Solomon’s evidence or
    testimony (in the form of Solomon’s declaration), in each instance
    sustaining defendants’ objections and noting Solomon’s evidence
    was “therefore disregarded.” Based on that approach, the court
    concluded Solomon provided no admissible evidence to support
    her claims that her unit had any defects, including mold or
    asbestos.
    The court took a similar approach to Solomon’s claim for
    damages. The court relied exclusively on the small subset of
    Solomon’s medical records, offered by landlord defendants, that
    indicated “Plaintiff identified her mental stressors as her divorce,
    her job, and her daughter going to college, without mentioning
    her apartment. Defendants also note that medical records
    indicate [Solomon] has had Hepatitis C, a preexisting skin
    condition, and allergies to trees, grass, weeds, and dander.”
    The court ruled all Solomon’s causes of action were directly
    or indirectly premised on her allegations that unit 302 was
    fraught with defects. Because the court had already determined
    there were no triable issues of fact regarding any defects in unit
    302, the court granted defendants’ motion for summary
    adjudication on Solomon’s causes of action for negligence, breach
    of the implied warranty of habitability, breach of covenant of
    quiet enjoyment, nuisance, violation of Business and Professions
    Code section 17200 and constructive eviction. The court also
    granted landlord defendants’ motion for Solomon’s remaining
    three causes of action for fraud, breach of contract, and
    intentional infliction of emotional distress. In addition to noting
    the absence of a triable issue of material fact for those three
    14
    claims, the court found there was no evidence that defendants’
    statements were knowingly false or that Solomon relied on the
    manager’s statements (fraud); there was no evidence that
    landlord defendants knew there was mold at the time they
    entered into any of the rental agreements with Solomon (breach
    of contract); and no evidence that defendants engaged in
    outrageous or extreme conduct (intentional infliction of emotional
    distress).
    Landlord defendants also moved to summarily adjudicate
    Solomon’s claim for punitive damages. The court held, “This
    issue is moot in light of the Court’s holding with respect to each
    cause of action asserted by Plaintiff.” For “completeness” the
    court added that “the Court concludes there is no evidence
    suggesting Defendants knew about the mold or any other
    problem with the property, nor is there evidence that they
    deliberately refused to do anything about it.”
    The trial court entered judgment in favor of landlord
    defendants on March 25, 2019. Solomon timely appealed.
    DISCUSSION
    1. Standard of Review
    Summary adjudication is appropriate if there are no triable
    issues of material fact and the moving party is entitled to
    9
    judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c) ;
    Regents of University of California v. Superior Court (2018) 
    4 Cal.5th 607
    , 618; Delgadillo v. Television Center, Inc. (2018) 
    20 Cal.App.5th 1078
    , 1085.) “‘“‘We review the trial court’s decision
    9
    All further undesignated statutory references are to the
    Code of Civil Procedure.
    15
    de novo, considering all the evidence set forth in the moving and
    opposing papers except that to which objections were made and
    sustained.’” [Citation.] We liberally construe the evidence in
    support of the party opposing summary judgment and resolve
    doubts concerning the evidence in favor of that party.’””
    (Hampton v. County of San Diego (2015) 
    62 Cal.4th 340
    , 347;
    accord Valdez v. Seidner-Miller, Inc. (2019) 
    33 Cal.App.5th 600
    ,
    607 (Valdez).)
    When a defendant moves for summary judgment in a
    situation in which the plaintiff at trial would have the burden of
    proof by a preponderance of the evidence, the defendant may, but
    need not, present evidence that conclusively negates an element
    of the plaintiff's cause of action. Alternatively, the defendant
    may present evidence to “‘show[] that one or more elements of the
    cause of action . . . cannot be established’ by the plaintiff.”
    (Aguilar v. Atlantic Richfield Co. (2001) 
    25 Cal.4th 826
    , 853
    (Aguilar).) “‘“‘The moving party bears the burden of showing the
    court that the plaintiff “has not established, and cannot
    reasonably expect to establish,”’ the elements of his or her cause
    of action.”’” (Ennabe v. Manosa (2014) 
    58 Cal.4th 697
    , 705;
    accord, Wilson v. 21st Century Ins. Co. (2007) 
    42 Cal.4th 713
    ,
    720; Kahn v. East Side Union High School Dist. (2003) 
    31 Cal.4th 990
    , 1002-1003 [“the defendant must present evidence that would
    preclude a reasonable trier of fact from finding that it was more
    likely than not that the material fact was true [citation], or the
    defendant must establish that an element of the claim cannot be
    established, by presenting evidence that the plaintiff ‘does not
    possess and cannot reasonably obtain, needed evidence’”].)
    “‘“[S]ummary judgment cannot be granted when the facts are
    susceptible to more than one reasonable inference.”’” (Grossman
    16
    v. Santa Monica-Malibu Unified School Dist. (2019) 
    33 Cal.App.5th 458
    , 465; accord, Husman v. Toyota Motor Credit
    Corp. (2017) 
    12 Cal.App.5th 1168
    , 1180.)
    “[T]he party moving for summary judgment bears an initial
    burden of production to make a prima facie showing of the
    nonexistence of any triable issue of material fact”]; Valdez, supra,
    
    33 Cal.App.5th 600
     at p. 607.) If the moving party satisfies this
    initial burden, the burden shifts to the opposing party to present
    evidence demonstrating there is a triable issue of material fact.
    (§ 437c, subd. (p)(2); Aguilar, at p. 850; Valdez, at p. 607.)
    2. The Trial Court Erred in Granting Summary
    Adjudication of Solomon’s Causes of Action for
    Negligence, Breach of the Implied Warranty of
    Habitability, Breach of the Covenant of Quiet Enjoyment,
    Nuisance and Constructive Eviction
    a. We consider only the evidence admitted by the trial
    court
    Landlord defendants objected to Solomon’s declaration and
    all the exhibits she submitted in opposition to defendants’
    motion. The court sustained most of these objections, leaving
    Solomon with very little documentation to support her claim that
    her unit was defective due to defendants’ conduct and that she
    had suffered damages.
    Conversely, all of defendants’ evidence was admitted
    because Solomon failed to object to defendants’ evidence in
    compliance with California Rules of Court, rule 3.1354, which
    requires written objections to evidence submitted in support of a
    summary adjudication motion to be presented in a specific format
    and served simultaneously with the opposition brief. (Cole v.
    Town of Los Gatos (2012) 
    205 Cal.App.4th 749
    , 764, fn. 6, citing
    17
    Evid. Code, § 353(a) [the objecting party must “make clear the
    specific ground of the objection”]; see also Cole, at p. 764 [failure
    to cite proper statutory authority in support of an objection or
    “make a coherent argument in support of the objection should be
    viewed as an abandonment of that objection”].) Instead of
    objecting, Solomon attempted to explain to the trial court that
    many of the statements contained in declarations or exhibits
    proffered by defendants were inconsistent with the exhibits she
    provided to the court; essentially, Solomon sought to show the
    trial court that there were numerous disputed issues of material
    fact.
    The trial court granted nearly all the landlord defendants’
    objections to Solomon’s evidence (including the reports from
    environmental contractors), primarily on the grounds of hearsay,
    lack of foundation or lack of authentication. The trial court
    considered the exhibits offered by defendants (including reports
    from environmental contractors), which similarly included
    hearsay and were not authenticated, because Solomon did not
    object to that evidence. Solomon also does not directly assert on
    appeal that the trial court erred in its evidentiary rulings. As a
    result, we must “consider all such evidence to have been properly
    excluded.” (Lopez v. Baca (2002) 
    98 Cal.App.4th 1008
    , 1014-1015
    [the failure to “challenge the trial court’s ruling sustaining . . .
    objections to certain evidence” forfeits “any issues concerning the
    correctness of the trial court’s evidentiary rulings”]; Benach v.
    County of Los Angeles (2007) 
    149 Cal.App.4th 836
    , 852 [“When an
    appellant fails to raise a point, or asserts it but fails to support it
    with reasoned argument and citations to authority, we treat the
    point as waived.”].) We therefore only consider the admitted
    evidence in our review of the summary judgment motion.
    18
    (Brown v. Ransweiler (2009) 
    171 Cal.App.4th 516
    , 529 [“A motion
    for summary judgment ‘must be decided upon admissible
    evidence’”].)
    b. There are triable issues of material fact for Solomon’s
    claims for negligence, breach of the implied warranty
    of habitability, breach of the covenant of quiet
    enjoyment, nuisance and constructive eviction
    The trial court found there were no “triable issues of fact as
    to any of the identified defects” in Solomon’s unit. The court
    granted landlord defendants’ motion for summary adjudication
    for Solomon’s causes of action for negligence, breach of the
    implied warranty of habitability, breach of the covenant of quiet
    enjoyment, nuisance and constructive eviction because each of
    those claims was premised on Solomon’s unsupported allegations
    that her unit was riddled with defects. The trial court erred.
    Landlord defendants did not meet their initial burden of
    showing the nonexistence of any triable issue of material fact
    regarding defects in Solomon’s unit. The court concluded there
    was no mold or asbestos in unit 302, relying in part on
    defendants’ exhibits D (the September 23, 2014 DPH inspection
    report), E (emails between Solomon and Hope in October 2014), I
    (the Executive Environmental asbestos inspection reports dated
    February 28, 2017, and August 9, 2017), and J (the July 7, 2017
    Executive Environmental re-occupancy report). Although select
    portions of those exhibits read discretely could support a finding
    that there was no mold or asbestos in unit 302, the exhibits also
    contain evidence that could support contrary findings.
    In Exhibit D, the DPH inspector reported, “Complaint
    investigation in unit #302 regarding mold in the unit. Violations
    observed.” The inspector noted a “microbial growth on tile and
    grout in shower/bathtub” and directed that the area be cleaned
    19
    and sanitized. In Exhibit E, Solomon told Hope that after
    defendants’ maintenance person cleaned the area noted in the
    DPH report, the bathroom was unusable because the chemical
    smell made it difficult to breath, and there was still mold around
    the bathtub. In Exhibit J, the Executive Environmental re-
    occupancy report included as an appendix the June 13, 2017
    Indoor Restore “Mold Inspection Report.” The Indoor Restore
    report concluded that air samples taken at unit 302 showed,
    “Slightly elevated levels of fungal spores . . . . Elevated levels of
    mold indicate a high likelihood of mold growth in the area tested
    at the time of inspection.” Indoor Restore also reported that,
    “Fungal contaminates were found on the [surface samples]” in
    unit 302. For both the air and surface samples Indoor Restore
    warned that, “Some types of molds have species associated with
    an indoor environment are considered to be toxic and may cause
    serious health risks.”
    In Exhibit I, the August 9, 2017 Executive Environmental
    asbestos inspection report is replete with references to asbestos
    removal conducted in unit 302, including: “The scope of work
    involved the removal of 30 square feet of asbestos containing
    drywall ceiling material from the Southeast section of the Master
    Bedroom in Unit 302”; “after the abatement of asbestos-
    containing ceiling materials”; and “the contractor has successfully
    completed the asbestos abatement for this project.” In addition,
    Executive Environmental noted that asbestos abatement work in
    unit 302 was “limited to locations required for the mold
    remediation activity being conducted.”
    Based on the record before it, the court erred in granting
    defendants’ motion for summary adjudication as to Solomon’s
    claims of negligence, breach of the implied warranty of
    20
    habitability, breach of the covenant of quiet enjoyment, nuisance
    and constructive eviction because disputed issues of material fact
    exist regarding defects in Solomon’s unit, including the presence
    of mold and asbestos.10
    3. The Trial Court Did Not Err in Granting Summary
    Adjudication of Solomon’s Causes of Action for Fraud,
    Breach of Contract, Intentional Infliction of Emotional
    Distress, Violation of Business and Professions Code
    section 17200, and Solomon’s Demand for Punitive
    Damages
    In their motion for summary adjudication, landlord
    defendants met their initial burden of making a prima facie
    showing that Solomon’s claims for fraud, breach of contract,
    intentional infliction of emotion distress and violation of Business
    and Professions Code section 17200 lacked merit because there
    was no evidence to establish the required elements for each of
    those causes of action. Defendants asserted that they: did not
    make knowing misrepresentations to Solomon regarding defects
    in the apartment; neither knew nor should have had reason to
    know there was mold in unit 302 when they entered into the
    lease with Solomon in 2008, 2009 or 2013; did not engage in
    extreme and outrageous conduct with the intention of causing
    10
    The trial court also concluded there was no triable issue of
    material fact as to other defects (including improper flooring,
    electrical problems and termites) alleged by Solomon. Because
    the landlord defendants did not meet their initial burden of
    establishing the nonexistence of any triable issues of material
    fact regarding some defects in Solomon’s apartment, we do not
    reach the issue of whether there is a factual dispute as to every
    defect alleged by Solomon.
    21
    emotional distress to Solomon; and did not engage in any
    unlawful, unfair or fraudulent business practice. The burden
    then shifted to Solomon to identify evidence to demonstrate she
    could establish each of the required elements. (§ 437c, subd.
    (p)(2); Aguilar, 
    supra,
     25 Cal.4th at p. 850; Valdez, supra, 33
    Cal.App.5th at p. 607.) Solomon failed to identify any admitted
    evidence that contradicted defendants’ assertions. As Solomon
    was unable to establish a necessary element of each of these four
    causes of action, the trial court properly granted defendants’
    motion for summary adjudication on these claims.
    The trial court also properly granted landlord defendants’
    motion for summary adjudication on the issue of punitive
    damages. In reviewing a summary adjudication ruling on a claim
    for punitive damages, “we view the evidence presented through
    the prism of the substantive clear and convincing evidentiary
    burden.” (Butte Fire Cases (2018) 
    24 Cal.App.5th 1150
    , 1158;
    Basich v. Allstate Ins. Co. (2001) 
    87 Cal.App.4th 1112
    , 1121 [“[o]n
    a motion for summary adjudication with respect to a punitive
    damages claim, the higher evidentiary standard applies. If the
    plaintiff is going to prevail on a punitive damages claim, he or
    she can only do so by establishing malice, oppression or fraud by
    clear and convincing evidence”].) Here, Solomon did not point to
    any admitted evidence, let alone clear and convincing evidence,
    that defendants engaged in oppression or fraud or otherwise
    acted with malice toward her.
    DISPOSITION
    The judgment is reversed. On remand, the trial court is to
    enter a new order granting defendants’ motion for summary
    adjudication as to the causes of action for fraud, breach of
    contract, intentional infliction of emotional distress, violation of
    22
    Business and Professions Code section 17200 and Solomon’s
    demand for punitive damages and denying the motion as to the
    causes of action for negligence, breach of the implied warranty of
    habitability, breach of the covenant of quiet enjoyment, nuisance
    and constructive eviction. The parties are to bear their own costs
    on appeal.
    *
    WISE, J.
    We concur:
    PERLUSS, P. J.
    FEUER, J.
    *
    Judge of the Alameda County Superior Court, assigned by
    the Chief Justice pursuant to article VI, section 6 of the
    California Constitution.
    23
    

Document Info

Docket Number: B297996

Filed Date: 2/16/2022

Precedential Status: Non-Precedential

Modified Date: 2/16/2022